What the appointment of Justice Victoria Gowri tells us about the judicially created Collegium system of Judges appointing Judges

- Seema Sapra

The recommendation of Justice Victoria Gowri as a Judge of the Madras High Court by the Supreme Court Collegium on 17 January 2023; the subsequent publicity of her problematic previously expressed views on Islam, Christianity, conversions, and on "Love Jihad"; the representations made to the Collegium against her proposed appointment; the filing of two Writ Petitions in the Supreme Court challenging the Collegium Resolution recommending Gowri as a Judge; her appointment as Judge by the Government of India on 6 February 2023 following the Collegium recommendation; the listing of these writ petitions for hearing by Chief Justice Chandrachud on 7 February 2023, the notification by the Madras High Court for the swearing in of Justice Gowri on 7 February 2023; the attempts to get the writ petitions heard before the swearing in; the ultimate hearing of these writ petitions after 10.30 am on 7 February 2023; the swearing in of Justice Gowri in the Madras High Court while these petitions were being heard in the Supreme Court; and the ultimate dismissal of these writ petitions by a Supreme Court Bench of Justice Sanjiv Khanna and Justice Gavai with detailed reasons to follow not only constituted high drama bordering on farce but also in the span of a few days exposed much that is wrong with the judicially created Collegium system of Judges appointing Judges. 

First we must assume that the Collegium Judges did their research on Ms Victoria Gowri and knew of her publicly expressed views and also knew that Ms Gowri was a member of Prime Minister Modi's political party, the BJP,  and was an office bearer of the BJP. We must assume this because the Collegium Judges and all votaries of the Collegium have maintained that they conduct a very thorough scrutiny of a candidate before recommending her for Judgeship.  The Collegium Judges have also maintained that they do their own independent scrutiny of a candidate and the reports from the Government and Intelligence Bureau are supplemental and supportive. We must assume that the Collegium Judges knew these facts about Ms Gowri, because these were facts ascertainable by a simple Google search, by a simple scrutiny of her social media posts, and it is inconceivable that the Collegium does not even engage in this level of basic scrutiny of a potential candidate for the position of a High Court Judge. 

If the Collegium claims to be unaware of these facts about Ms Gowri, then this itself exposes a major flaw in the working of the Collegium. The process adopted by the Collegium for scrutinising candidates is therefore flawed. Such a basic flaw in the process adopted for appointing High Court and Supreme Court Judges by a five member group comprised of the 5 senior most Judges in the country (the Collegium), shows that unless these five senior most Judges lack basic common sense, the factors that play a role in the Collegium's selection of Judges are arbitrary, extraneous, and that the decision making process is itself arbitrary and incorrect. Can the Collegium be trusted to select any other person as a Judge if its scrutiny process failed to unearth these basic facts about Ms Gowri. 

Or should we assume that the Collegium was aware of these facts about Ms Gowri but reached the conclusion that these revelations about Ms Gowri did not disqualify her to be a Judge on the ground of unsuitability. 

The Supreme Court's response came in the statement of future Chief Justice of India Mr Gavai made during the hearing - "You have to trust the system".